This was an application of a personal injury claimant to have the judge’s reasons withdrawn from the Court’s website (2017 BCCA 321). In  the personal injury case it was alleged the claimant suffered a brain injury that left him with a lack of emotional control. The claimant had an “outburst” during cross-examination that involved the use of expletives, and pejorative descriptions of the court, which this Court described as “an obscene diatribe and bizarre behaviour” and the trial judge dismissed his claim.

An appeal from the dismissal was successful and a new trial ordered as the order made by the judge exceeded what was appropriate.  After the Court of Appeal’s decision, no re‑trial was held as the claimant decided to settled his claim.

The open court principle embodies the importance of ensuring that justice be done openly and as this Supreme Court of Canada has previously remarked, “[p]ublicity is the very soul of justice”(Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at para. 1).

If it is not open to a litigant, on an application such as the present, to call into question the reasons of a division of the Court which finally decided an issue, is it nevertheless open to the Court to restrict access to its reasons for decisions? This Court’s Record and Courtroom Access Policy indicates some of the circumstances in which the Court may entertain restricting access to its proceedings, which would include access to its reasons for decision. As the Court of Appeal pointed out,

[16] In this case the reasons of the Court have been published on the Court website for many years, and there has been republication in various other legal paper and electronic reports. Withdrawing the reasons from the Court website would not result in the withdrawal from those other paper and electronic reports…

[18]  The leading cases germane to the open court principle include Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, and Re Application to Proceed in Camera, 2007 SCC 43. Public access to the courts and the reasons of the courts allows everyone the opportunity to see that justice is done, and that justice is administered in a non‑arbitrary manner in accordance with the rule of law…

[20]   Departing from the open court principle, which in this case would entail restricting the public right of access to the reasons of the Court, should not be embraced lightly, and, as the Court policy provides, should generally only involve exceptions recognized by law, serious risks to privacy, and other important interests such as the administration of justice. In my view, none of those exceptions are engaged here.

The application was dismissed and the public is still free to read this this decision without restriction.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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